Patural v DB Services (UK) Ltd

A late amendment alleging bad faith requires clear and cogent evidential support. The court may refuse an amendment where the allegation is speculative, unsupported by further evidence, or introduces a materially different factual case from the existing pleading. An allegation that conduct was irrational or breached trust and confidence does not, without more, amount to an allegation of bad faith. Bad faith must be pleaded in plain and express terms. The discretion to permit amendment is fact-sensitive, and a previous case permitting a late amendment does not establish a general rule.

The claimant sought permission to amend his particulars of claim after the court had delivered its oral judgment on the defendant’s applications. The proposed amendments alleged that the defendant and certain individuals had acted in bad faith in the processes leading to bonus decisions for 2008 and 2009. They also alleged irrationality, perversity and breach of an implied term of trust and confidence.

The claimant relied on the court’s power under CPR 17.1 and CPR 17.4, and referred to Cook v MSHK Limited [2009] IRLR 838. The defendant opposed the application on the basis that the amendment was late, unsupported by evidence and materially different from the existing case.

1. Application refused. The claimant was not permitted to amend his particulars of claim to plead bad faith in the processes leading to the 2008 and 2009 bonus decisions.
2. An allegation of bad faith should be supported by clear and cogent evidence. In the context of a late amendment, the court will not permit an allegation unsupported by evidence and amounting to speculation or invention. The claimant had filed no further evidence and had not stated in his witness evidence that he believed the relevant decision-making processes were tainted by bad faith.
3. The relevant issue was the alleged bad faith in the process before and leading to the bonus decisions. Allegations that misleading statements or lies were made after the decisions did not provide evidential support for that distinct allegation.
4. An allegation that the exercise of contractual discretion was irrational did not implicitly include an allegation of bad faith. If bad faith is relied upon, it must be pleaded in plain terms. The analogy between this type of contractual case and judicial review reinforced that conclusion.
5. The decision in Cook v MSHK Limited [2009] IRLR 838, where a late amendment was allowed, did not require the same result. Each case depended on its facts, and the factual landscape here was fundamentally different.